Land and Environment Court New South Wales Medium Neutral Citation: Tanti v Randwick City Council [2024] NSWLEC 1073 Hearing dates: 21 November 2023 Date of orders: 23 February 2024 Decision date: 23 February 2024 Jurisdiction: Class 1 Before: Harding AC Decision: The Court orders that: (1) The appeal is dismissed. (2) Development Application No. DA/677/2022 for demolition of the existing structures and the construction of an attached dual occupancy with two basement garages, a swimming pool, landscaping and associated works at 59 Tunstall Avenue, Kingsford, is refused. (3) The exhibits are returned with the exception of Exhibits A, B, C and 3. Catchwords: DEVELOPMENT APPLICATION – attached dual occupancy – amended plans – streetscape – primary frontage – amenity Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, s 34AA Randwick Local Environmental Plan 2012, cll 2.3, 4.1C, 4.6 Texts Cited: Randwick Development Control Plan 2023 Category: Principal judgment Parties: David Victor Tanti (Applicant) Randwick City Council (Respondent) Representation: Counsel: J Farrell (Applicant) A Seton (Solicitor)(Respondent) Solicitors: McKees Legal Solutions (Applicant) Marsdens Law Group (Respondent) File Number(s): 2023/149408 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by David Victor Tanti (Applicant) against the Respondent's refusal of Development Application No. DA/677/2022 lodged with Randwick City Council on 28 December 2022. The application was determined by way of refusal on 18 April 2023. 2. The development application seeks development consent for demolition of the existing structures and the construction of an attached dual occupancy building with two basement garages, a swimming pool, landscaping and associated works. The site is identified as Lot 469 in DP 10752 and has a street address of 59 Tunstall Avenue, Kingsford. 3. The Court arranged a conciliation conference between the parties, under s 34AA(2) of the Land and Environment Court Act 1979, which was held on 20 November 2023. An agreement between the parties was not reached and therefore the conciliation conference was terminated and the matter proceeded to hearing on 21 November 2023. I presided over the hearing and this judgment reflects the outcomes of that process. 4. I have concluded, for the reasons set out below, that the merits of the matter warrant the appeal being dismissed, and consequently, that the development application should be determined by way of refusal. The site and locality 1. The site is located on the eastern side of Tunstall Avenue, Kingsford and has an area of 439.9m². The site is a corner allotment and generally rectangular in shape. The western street frontage to Tunstall Avenue measures 9.015 metres and the northern street frontage to Tresidder Avenue measures 32.760 metres. The eastern rear boundary length is 12.250 metres and the southern side boundary length is 36.405 metres. 2. The site currently contains a single storey detached dwelling. There is also a detached subterranean single garage at the rear of the property, on top of which is a covered patio. Retaining walls along the secondary frontage of Tresidder Avenue and the rear boundary have resulted in the current building being partially elevated above surrounding land. 3. The site is located within a residential area that comprises of low to medium density residential dwellings, ranging from one to two storey houses and semi-detached dwellings. The Applicant points out that there are some examples of dwellings that have obtained three storeys in height and an example of a dwelling with four storeys. Public Submissions 1. The development application was notified from 16 January through to 31 January 2023 for 14 days. One submission was received objecting to the proposal. The submissions predominantly raised concerns relating to rear setbacks, building height, impacts on light and visual privacy and overshadowing. Further concerns were raised regarding the rear retaining wall, the adequacy of existing structures and the existing pool. 2. As part of the Court process, the parties undertook a site view. There were no third party submissions at the site view. The Assessment Framework The Randwick Local Environmental Plan 2012 1. The site is zoned R2 Low Density Residential under Randwick Local Environmental Plan 2012 (RLEP 2012) and development for the purposes of an attached dual occupancy is permissible in the zone. The relevant objectives of the zone, to which regard must be had in determining the development application (cl 2.3 (2) RLEP 2012) are: * To provide for the housing needs of the community within a low density residential environment. * To enable other land uses that provide facilities or services to meet the day to day needs of residents. * To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. * To protect the amenity of residents. * To encourage housing affordability. * To enable small-scale business uses in existing commercial buildings. 1. The issue of non-compliance with the minimum lot size, for an attached dual occupancy, is a contention in the proceedings. The RLEP 2012, at cl 4.1C, requires a minimum area for attached dual occupancies as follows: 4.1C Minimum lot size for dual occupancies (attached) (1) The objective of this clause is to provide for housing diversity and affordability in residential zones. (2) Development consent may be granted for development on a lot in Zone R2 Low Density Residential for the purpose of a dual occupancy (attached), if the area of the lot is at least 450 square metres. 1. The parties agree that the proposal complies with other development standards contained within the RLEP 2012. The Randwick Development Control Plan 2023 1. The Randwick Development Control Plan 2023 (RDCP 2023) sets out, in Part C1 Low Density Residential (Part C1), certain criteria for attached dual occupancies. This includes Section 2.2, Lot Frontage criteria. The objectives for Lot Frontage are as follows: "● To ensure land subdivision respects the predominant existing or planned future subdivision and development pattern of the locality ● To ensure land subdivision creates allotments that have adequate width and configuration, to deliver suitable building design and to maintain the amenity of the neighbouring properties ● To ensure dwellings have suitable scale and built form proportional to their allotment to complement the streetscape ● To ensure dual occupancy dwellings do not result in unreasonable impacts on the surrounding properties in terms of visual amenity, solar access and privacy." 1. Section 2.7, also of Part C1, sets out objectives for Private Open Space as follows: "● To ensure an adequate level of private open space is provided for dwellings to enable passive recreational activities by residents ● To ensure private open space is designed for useability, solar access, privacy and accessibility ● To ensure semi detached dwelling and dual occupancy development provides a suitable level of functional private open space for each dwelling that offers high amenity for residents." 1. Section 4.2 sets out Building Design criteria for attached dual occupancies. The objectives include: "● To ensure the configuration, scale, massing and proportions of attached dual occupancies are compatible with other dwellings in the street ● To ensure parking facilities do not dominate the street elevations of dual occupancy dwellings, and instead present as an integrated element of the overall architectural composition ● To encourage the design of buildings that go beyond current minimum sustainable standards to benefit residents and the broader Randwick community." 1. There are also a number of applicable controls in Sections 4, 5 and 6, of Part C1, which are applicable to the design outcomes of attached dual occupancies. These are referenced, as necessary, throughout the judgment. The Issues 1. The parties rely on the joint expert reports as follows: 1. Town Planning – Joint expert report prepared between Mr D Barber (town planner for the Applicant) and Mr G Turrisi (town planner for the Respondent) (Ex 3). 1. The experts remained apart on many aspects of the development. The joint report was accompanied by amended architectural drawings proposing solutions to some of the matters raised. It is a version of these amended plans which were subsequently filed with the Court as an amendment to the application. Leave was granted to rely on these plans and they now are noted as Ex B in the proceedings. 2. Mr Barber says (Ex 3, p 3) that the amended plans comply with both the RLEP 2012 and the RDCP 2023 with the exception of cl 4.1C relating to minimum allotment size for attached dual occupancies. In respect to that variation, Mr Barber's evidence is that the written request to vary the development standard in cl 4.1C can be supported on planning grounds. 3. The Respondent says that the contentions are not resolved. The Respondent does not agree that the development provides an appropriate form and massing given the context of the site and the nature of the development. The Respondent's concerns centre around form and massing. These concerns manifest themselves into various planning criteria such as character, form, setbacks, visual impact, streetscape and scale. 4. The Applicant and Respondent turn to the planning controls to either support or refute the acceptability of the proposal. The controls are predominantly the zone objectives for the site, the minimum lot size requirement in the RLEP 2012 (cl 4.1C) and then a variety of requirements through the RDCP 2023. The zone objectives in contention focus on the desirable elements of the streetscape and built form as well as the objective to protect the amenity of residents. 5. The issue of compliance with cl 4.1C of the RLEP 2012, the minimum lot size development standard, is a threshold contention in the proceedings if the development is to be approved. This issue requires consideration, and support, of a cl 4.6 written request to vary the development standard. Whilst this has been supplied, neither the parties nor the planning experts, agree that the variation is acceptable. Is the form, massing, scale and character acceptable? 1. The objective to the R2 zone in RLEP 2012 requires consideration of "desirable elements of the existing streetscape and built form" as well as the protection of the amenity of residents. The RDCP 2023 also provides a series of desired planning outcomes, in the form of both objectives and controls, to guide the assessment process. This includes providing a series of controls that set out desirable criteria for achieving appropriate streetscape and built form outcomes. 2. The differences between the parties centres around the form and character of the proposal. This also includes consideration of the topography of the site, the location of the dwellings, the location and design of pedestrian and vehicular entries to the site and the provision of private open space. Is the amount of gross floor area acceptable? 1. The experts agree, in the joint report, that the proposed development is compliant with the allowable gross floor area (GFA) for the site. They also agree that the void areas, that are provided in the design solution, "contribute to additional bulk and mass" (Ex 3, p 5). They disagree as to whether this is an acceptable planning outcome. 2. The void areas do play a part in the planning outcome irrespective of whether they are calculated as GFA. They occupy a "mass" which is a first floor volume located at a 2.0m setback to Tresidder Avenue. This has consequences, when considering the Applicant's position that Tresidder Avenue is the primary frontage, as discussed later in this judgment. Which is the primary frontage? 1. The RDCP 2023, in Part C1, Section 2.2, requires a minimum frontage and area for attached dual occupancy development. The lot frontage objectives (see [13]) seek to ensure that new allotments have adequate width and configuration to deliver suitable building design and to maintain the amenity of the neighbouring properties. They also seek to ensure that dwellings have a suitable scale and built form, proportional to their allotment, to complement the streetscape. Table (ii) in Section 2.2 says that the minimum width of the parent lot, for attached dual occupancies, is 15m. 2. The Applicant presses for Tresidder Avenue to be the "primary" frontage for the site but this in turns brings other problems that are highlighted by the Respondent. A primary frontage to Tresidder Avenue would require a more significant streetscape treatment than is proposed and a better design interface to the street frontage. 3. The RDCP 2023, at Section 2.5 Deep Soil, Control (vi), requires 25 % of the front setback to be deep soil. If the primary frontage was to Tresidder Avenue, then consideration would be given to the location of two driveways crossings, the likely Onsite Detention Basin and the excavated entrance to Dwelling 1. The pathway to Dwelling 2 is also excluded from deep soil provision. These outcomes make achieving the deep soil provisions unlikely. 4. The void areas on the first floor would be dominant in this part of the streetscape and the proximity of these elements to the boundary are uncharacteristic of primary setbacks for the immediate area. The ground floor setback is 1.5m and the upper level setback, of 2.0m, provides little room for landscaping in the "primary" setback area (if the Applicant's position is adopted). Whilst the front setback can be determined by "averaging" the adjoining property setbacks, this cannot be applied to this location when there is only one potential neighbour in that streetscape. The default setback is 6.0m. 5. If the Respondent's position is correct, that Tunstall Avenue is the main frontage, then the proposal falls well short of the minimum allotment width requirement for a frontage to be a minimum of 15m. This then raises queries about the overall placement of the buildings, street presentation and entrances, as well as the location and utility of private open space. 6. The term "parent lot", which is used in the RDCP 2023 at Section 2.2, implies that it is the lot in existence at the start of the development process. It is the "parent" lot that is subsequently changed to accommodate the new development. This proposal starts with an allotment with the main streetscape presentation being to Tunstall Avenue and with a street address reflecting that. As a result, Section 2.2 of the RDCP 2023 requires the parent lot to achieve a minimum frontage width to Tunstall Avenue of 15.0m. It is for the reasons stated above that I agree that the primary frontage is Tunstall Avenue. 7. I also agree with the Respondent; that if Tresidder Avenue were the primary frontage, this would raise a separate set of issues around streetscape controls in the RDCP 2023. These relate to the height of fencing, openings in the retaining walls, landscape setbacks and overall presentation of the streetscape. 8. Irrespective of which is the primary frontage, Section 4.1 and 4.2 of Part C1, still require consideration of scale and massing, the architectural character of the streetscape and front facade solutions that soften the visual dominance of parking facilities. Is the streetscape interface acceptable? 1. Mr Turrisi raised concerns about the entrance to Dwelling 1 in respect to the lack of interface with the street. The proposal provides for a gate through a retaining wall and fence that exceeds 2.1m in height. These heights are exacerbated by increasing the levels within the property. 2. A further aspect of the streetscape considerations is the Safety and Security provisions of Section 5.5 of the RDCP 2023. As part of his overall concerns around streetscape, Mr Turrisi notes (Ex 3, p 26, par 10) that the issue of safety and security have not been addressed. Mr Turissi felt that the entry interface to the dwellings, Dwelling 1 in particular, was a poor street interface. Mr Turissi made comment about the preferred outcome being a lowering of the boundary wall and an improved interface with the dwelling and foot path levels. 3. I am persuaded by the Respondent that the objectives and controls around these aspects of the streetscape are not met in the current design. I agree that the change in levels, the nature of the entry path and the height of walls and fencing do not meet the RDCP 2023 controls to ensure, amongst other things, that front fences, parking facilities and landscaping must be designed to not obstruct casual surveillance to and from the dwelling and permit safe access by residents and visitors. Is the Private Open Space acceptable? 1. Mr Turrisi makes the following observation: "The proposed private open space to the front restricts a general streetscape character that has front yards visible from the public domain where they contribute to the landscape setting/streetscape, including rooms that have an interface/interaction with the street. The only reason, in my opinion, the private open spaces is located to the front is simply because the width and the size of the lot prevents the relocation of the private open space to the rear. (Ex 3, p 26, par 11)" 1. Even though Dwelling 2 has the entrance to Tunstall Avenue, the private open space for that dwelling sits in the western corner behind the alignment of the dwelling and is potentially exposed to the public domain. The current proposal relies on mature landscaping (a hedge) for privacy screening of this one area of private open space. Absent the landscaping, the area is only separated from the public domain by the existing low fence and provides minimal, if any, privacy. 2. The outcome for Dwelling 1 is much the same. The elevated nature of the site has led to a design choice to not provide conventional 1800mm high fencing around the private open space. This has two inferior outcomes, one is the potential for privacy impacts to the east, the other is for an absence of privacy for the occupants of Dwelling 1 from locations in the public domain in Tresidder Avenue (at the western end). 3. The provision of adequate fencing would create other issues. It would raise the height of both the boundary interface with the Tresidder Avenue and the adjoining neighbour to the east. These outcomes would also be contrary to streetscape controls and raise bulk and scale issues. 4. Mr Turrisi also says that a wider allotment would have allowed for a better location for private open space and that the minimum allotment width, fronting Tunstall Avenue, should be upheld. On the basis of the issues arising from the proposed private open space outlined above, I concur with Mr Turrisi on this issue. Section 2.7 of the RDCP 2023, Controls (ii), sets out controls that assist in the design of the private open space in meeting the objectives of Section 2.7. The narrow width of the allotment has played some role in determining that the design and location of the private open space for the dwellings do not meet these objectives. Where are the driveways and are they acceptable? 1. Part C1, Section 6 of the RDCP 2023 sets out parking and access requirements relevant to the proposal. The objectives seek to ensure car parking and access does not dominate the frontage and streetscape, are integrated with the architectural expression as an integrated element, and to minimise the impacts on deep soil landscaping and stormwater. 2. The plans suggest that the proposal provides for retention of an existing garage that will be accessed through an existing opening on the stone wall frontage to Tresidder Avenue. These statements are not supported by the plans before the Court in that large sections of the existing garage will have to be demolished and rebuilt. In particular, the northern façade of the garage forms part of the wall which is to have the existing masonry component removed and reinstated. 3. It is also unclear how the proposed swimming pool lining, utilising the existing garage wall, and the proposed On Site Detention (OSD) tanks can be completed without disturbing internal walls of the garage. The sections indicate that the entire roofed area of the garage is to be removed and increased in height (by some 400mm to 500mm). This is evidenced by sections which show existing ground lines as being well below the future height of the garage roof. This is further confirmed by comparing the survey levels over the existing garage with the proposed finished level of RL 28.4 for the outside terrace area. 4. It is proposed to provide a further opening into the stone wall to provide garaging for Dwelling 2. The RDCP 2023 also allows an access point for each dwelling subject to criteria being met, which includes deep soil and tree planting requirements, but streetscape considerations still apply. 5. It is proposed to provide a pedestrian gate in the new retaining wall and fence which reaches heights of 2.1m and above. The final height, at the eastern end of the new section, is not labelled but would exceed 3.3m (2.3m plus courtyard boundary wall of 1.0m). 6. The above outcomes lead me to the conclusion that the treatment to the retaining wall, fencing and openings in the wall is inconsistent with the objectives and controls in the RDCP 2023 for both streetscape and car parking access. The extent of work being undertaken both to the wall, and behind the wall, is of such magnitude that compliance with the RDCP 2023 is a reasonable expectation. It is for these reasons that I agree with the Respondent that the proposed design solutions are contrary to the planning controls seeking appropriate streetscape outcomes. Are the impacts on other residents acceptable? 1. The adjoining resident to the east made submissions regarding perceived impacts of the development. These are outlined at [8] above. 2. The Respondent raises concerns over the clarity of the proposal at the eastern interface with the adjoining property. The submitted plans do not clearly document the finished height of walls, the areas of walls to be retained, nor the extent to which existing walls may need replacing. There is no east elevation provided of the boundary structures. As a result, there are inadequate details of the retaining wall and proposed planter above showing the dimension of existing and future heights and including the extent of demolition and rebuilding. 3. The cross sections through the private open space of Dwelling 1 show that ground level in this area has been increased between 400mm and 500m and that a planter box is proposed along the eastern boundary. The current ground level, at the eastern interface, is approximately RL 28. This is to be increased to RL 28.4. 4. The Applicant responded to the potential privacy concerns through the provision of a hedge reaching a mature height of 2.0m. The Applicant says this resolves the privacy impacts, but I do not agree with that summary. The detail around this issue provides for too much uncertainty and reliance on future landscape reaching mature heights and being appropriately maintained to ensure privacy is adequate. 5. The eastern interface is a sensitive interface given the height differences between the properties and the impacts that arise from that change in level. Whilst there would be some amenity improvement where walls are reduced in height compared with the current wall height, this is not articulated in the drawings to a point where I have the required confidence as to what is ultimate design outcome. At present, the perceived impacts of bulk, scale and privacy are unacceptable. Conclusions 1. After a considered evaluation of the evidence, and an assessment of the matters for consideration in s 4.15 of the EPA Act, I have concluded that the proposal is unacceptable and is likely to have detrimental impacts. Having reached this merit based assessment, I have not specifically dealt with the Applicant's written request to vary the development standard in cl 4.1C of RLEP. To the extent that the deficiencies identified in this judgment overlap with the objectives and controls for minimum lot size, they heighten the sensitivity as to whether the written request would have been supported. 2. The Court orders that: 1. The appeal is dismissed. 2. Development Application No. DA/677/2022 for demolition of the existing structures and the construction of an attached dual occupancy with two basement garages, a swimming pool, landscaping and associated works at 59 Tunstall Avenue, Kingsford, is refused. 3. The exhibits are returned with the exception of Exhibits A, B, C and 3. ​​​​​​​………………………… S Harding AC Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2024